It is important to know what changes have been made to the statutory regime for succession to a tenancy when a tenant dies
For secure tenancies, it can be found under Section 160 of the Localism Act; while for assured tenancies, it is under Section 161 of the same Act 2011.
It remains that there can only be one succession, and that when one joint tenant dies this counts as one succession.
Before the Act, a wide range of family members were able to succeed to a tenancy on the death of a secure tenant, including: civil partners, parents, grandparents, children, grandchildren, aunts, uncles, nieces, nephews, and adopted children. A full list is set out at Section 113 of the Housing Act 1985.
Civil partners and spouses are entitled to succeed so long as they were occupying the property as their only or principal home at the date of the death.
Other family members were required to prove they had occupied the property as their only or principal home for 12 months prior to the death of the tenant whose tenancy they wish to succeed.
Under the provisions of Section 17 Housing Act 1988, a spouse, civil partner or someone living with the tenant as a spouse or civil partner is entitled to succeed to the tenancy provided they occupied the property as their only or principal home at the date of death.
It was very common to see landlords of assured tenants including wider succession rights in their tenancy agreements, thus allowing the tenant to benefit from a wider list of family members who would be entitled to succeed to the tenancy provided they had occupied the property as their only or principal home as the death of the tenant.
Automatic right to succession
Section 160 of the Localism Act 2011 provides that secure tenancies which started after 1 April 2012 are limited to the succession of spouses or civil partners. This is an automatic right.
The wider group of family members who have traditionally succeeded to a secure tenancy by virtue of being listed in Section 113 of the Housing Act 1985 do not automatically receive statutory succession. The landlord can make express provision in the tenancy agreement to expand the group of individuals that can succeed.
Section 161 of the Localism Act 2011 provides that assured tenancies which started after 1 April 2012 containing a clause which expands the statutory group of individuals entitled to succeed to include family members; the family member who is entitled to succeed will enjoy a statutory succession. Family members may only succeed if there is express provision in the tenancy agreement.
Unlike before, those listed and who become entitled to succeed under an express term of a tenancy agreement will enjoy a statutory succession, so that no new tenancy is required.